Outline of the Japanese Copyright Law

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1 Outline of the Japanese Copyright Law Japan Patent Office Asia-Pacific Industrial Property Center, JIII

2 CONTENTS Page Chapter 1 General 1 1. Introduction 1 2. History of the copyright law 1 3. International Harmonization and Cooperation Concerning Copyright Systems Essence of Copyright Relationship Between a Copyright and Various Neighboring Rights 15 Chapter 2 Outline of the Copyright Law Purpose Subject of Copyright Object of Copyright Works not protected under Copyright Law The rights of authors Author s moral rights Cases where free exploitation of a work is authorized Terms of copyright protection Transfer of Copyrights Grounds for expiry of copyright Treatment of the author s moral rights Transfer of a copyright and the authorization of for its use Copyright registration system 35 -i-

3 14. Neighboring Rights Infringement of copyright 39 Chapter 3 Issues in Practice Characters The title of a movie or a novel Publications issued by the government Newspaper articles and photographs Red Cross marks Exploitation of photographs of currencies and stamps Treatment of maps Portrait right and right of publicity The name of goods or service Copyright symbol ( ) Requirements for quotations Catchphrase Authorship of a work completed through a company employee s duty and authorship by a legal entity Points to be noted in a contract to authorize exploitation of a work Reproduction by using a copy machine Background music in shops Sound and visual recordings of TV programs Illegal reproduction of software Reverse engineering of computer programs 50 -ii-

4 20. Treatment of packaged software (CD-ROM, CD-I) Game software Network society and content liability issues Treatment of letters and images on homepages as works Direct, indirect, and contributory infringement Uploading, downloading, and acts of reproduction Importation of illegal reproductions into Japan Works imported in parallel Protection of contents 54 -iii-

5 Chapter 1 General 1. Introduction Recently enterprise management has placed an increasing focus on promoting businesses in software, services, and information fields. Because of this, intellectual property right issues are regarded as important in enterprise activities. Within intellectual property, copyright-related issues are regarded as especially important due to recent progress in multimedia. Thus, enterprise activities now deeply involve copyright law. Meanwhile, recent rapid technological innovation has given rise to many difficult issues in the copyright field. Now that networking has firmly taken root, there is a need to review past legal systems regarding copyrights on a global scale. Nevertheless, we shall explain the outline and practices of the Japanese Copyright Law in this textbook. This textbook is written based on the revised Japanese Copyright Law of History of the copyright law The world history of copyright systems dates back as far as the invention of typography by Johannes Gutenberg in the 15th century. In those days of the Renaissance period, classics were actively published in Europe. However, it required an enormous effort to collect and arrange then, and publication of a pirated edition seriously affected the sales of the original. As a result, the original printers and publishers claimed a publication patent system to prevent publication of pirated editions and secure their economic interests. This system is said to be the basis for today s copyright systems. -1-

6 Copyright was thus included in the patent system for some time, but faced a major turning point in the 17th century by the spiritual property right theory. This idea stated that copyright is the property right of the author on his/her written work and also appears in the British Statute of Anne (8. Anne c. 19, 1710) of 1709, which is the world s first copyright law. When we look at Japan s history of copyright systems, we can see the first signs of such a system in the days of the Tokugawa administration (the Edo period: early 17th century mid 19th century) where publication of similar editions of a written work was prohibited. However, this was only an agreement among private publishers who were members of a kabu-nakama (a trade association in the Edo period), and was not a national system. The law considered as the first copyright law in Japan is the Publishing Ordinance of The Ordinance granted the publisher of books beneficial to the country a monopoly on such books, in order to compensate for publishing expenses. Clause 3 of the Ordinance provided that the government shall protect publishers of books and allow them to profit from the monopoly. The aim of this provision was to protect the publishers rather than protecting the authors. At the same time, the Publishing Ordinance included provisions to regulate publication. Thus, the Publishing Ordinance had the nature of a publication law, and greatly differed from the present copyright law which protects the rights of the authors. Such a phenomenon is not peculiar to Japan, and also can be observed in various European countries in the early stages of copyright systems. When the Ordinance was fundamentally amended in 1875, the term hanken was used in legal provisions for the first time. The term hanken means a monopoly -2-

7 on a book (exclusive publication right). Clause 2 of the Ordinance provided that when a party writes a book or translates a book from a foreign language and publishes it, the party shall be granted a 30-year monopoly on the book, and this monopoly shall be referred to as a hanken. This term, hanken, was translated by Yukichi Fukuzawa, an intellectual, who is regarded to have introduced the idea of copyrighting to Japan. The Publishing Ordinance was established about 160 years after the British Statute of Anne, and after going through several revisions, gradually settled into shape as a copyright law. The Publishing Ordinance was originally established to protect hanken and regulate publication, but provisions regulating publication were separated in 1887, thereby newly establishing the ordinance as the Hanken Ordinance, the first individual copyright law. In the meantime, the patent approach was shifted toward registration approach, and in 1893, the name of the Ordinance was changed to the Hanken Law. This period of time principally oriented around registration, as represented by the Hanken Ordinance and Hanken Law, is sometimes referred to as the Hanken Law period. It marked the transition from the patent to the copyright system. A full-fledged, modern copyright system was established in Japan with the Copyright Law of The Meiji government, after negotiating with European countries and the US on the abolishment of their extraterritorial rights, agreed to accede to the Berne Convention in the 1894 Japan-Britain treaty of commerce and navigation etc. in exchange for the abolishment of extraterritorial rights. The convention stipulated -3-

8 raising standards for protection of intellectual property rights and the equal treatment of nationals and non-nationals. Japan acceded in 1899, the deadline set, and also reorganized and integrated several laws including the Hanken Law and established the Copyright Law in compliance with agreed standards under the Berne Convention. This Copyright Law is referred to as the old Copyright Law in contrast to the current Copyright Law, and was drafted by Dr. Rentaro Mizuno. The law attracted the attention of several other countries at the time for being a modern copyright system, in that it used the term copyright, abolished the registration system, and extended the duration of copyright protection to 30 years following the death of the author. The Japanese copyright system, after going through the patent approach and the registration approach, finally became a system similar in structure to those in the U.S. and Europe with the establishment of the old Copyright Law. The old Copyright Law maintained its basic framework for about 70 years, while going through several partial amendments. However, the rapid development of postwar science technologies encouraged the development of reproduction technologies, bringing with it the diversification and advancement of reproduction means. Also, as sequential amendments of the Berne Convention took place in Brussels, the Stockholm, and Paris conferences after an initial Rome conference, the international level of copyright protection under the copyright system improved significantly. In order to effectively cover these social changes both in Japan and overseas, it was urgent that the old Copyright Law should be amended extensively. Thus, the new Copyright Law was finally established in 1970, consisting of seven chapters, -4-

9 124 articles and 31 supplementary provisions (Law No. 48, promulgated on May 6, 1970). This is the current Copyright Law. The current Copyright Law has the following features: (1) it squarely provided the author s personal rights under the term, moral rights of authors to strengthen the protection of an author s personal interests; (2) it extended the duration of copyright protection to 50 years after the death of the author; (3) with respect to the ownership of copyrights in cinematographic works, it distinguished the author of a cinematographic work from the copyright owner of the work, and provided that the maker of the cinematographic work shall be the copyright owner; (4) it deleted all provisions on the 10-year preservation of the translation right to keep in line with member states of the Berne Convention; and (5) it established the neighboring right system to achieve consistency with the Neighboring Rights Convention. Current Copyright Law has undergone various partial amendments following its establishment. Recent advances in the diversification of communication technology, especially concerning multimedia, are remarkable. Furthermore, many international copyright conventions have been acceded concerning these new fields. Therefore, various amendments were made to adequately correspond to such a changing society and to comply with international standards. First, legal amendments were made in 1978 to conclude the Phonogram Protection Convention (The Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Products). In 1984, necessary legal amendments were made for establishment of several rights including lending after -5-

10 the popularization of phonogram-rental and dubbing businesses. In 1985, legal amendments were made to protect computer programs, and in 1986, provisions on database protection were made clearer. At the same time, provisions on wire diffusions were improved. Furthermore, amendments made in 1988 extended the duration of the protection of neighboring rights and upgraded provisions on penalties for possession of pirated editions for distribution purposes. Then in 1989, Japanese national law was improved for conclusion of the Convention for Protection of Performers, etc. (The International Convention for Protection of Performers, Producers of Phonograms, and Broadcasting Organizations). After that, in 1991, legal amendments were made concerning rights granted to non-japanese performers and producers of phonograms on the lending of commercial phonograms, the extension of duration of the neighboring right protection, and the protection of non-japanese original phonograms that existed before Japan acceded to the Phonogram Protection Convention. In 1992, amendments were made to compensate for interests of the copyright owner in personal recording at home using digital recording equipment. Then, in 1994, amendments were made for conclusion of the WTO Agreement (the Marrakech Agreement Establishing the World Trade Organization). In 1996, the law was amended to retroactively expand protection under neighboring rights, reinforce civil remedies and penalties, and extend the duration of protection for photographic works. In 1997, provisions on public transmissions were improved to correspond to rapid development of information technologies. Furthermore, in 1999, amendments were made to regulate the circumvention of technological protection measures and protect rights management information in order to match progress of digitization and networking, while expanding rights of cinematographic presentation, -6-

11 establishing the right of assignation, and abolishing Article 14 of the Supplementary Provisions (abolishment of transitory measures that had restricted the rights of copyright owners concerning reproducing performances of musical works by the use of sound recordings). (Note1, Note2) Further amendments were adopted in 2000 including expanded restriction on the rights relating to the use of copyrighted works for people with visual and hearing disabilities, reduced burden of proof in copyright infringement actions, significantly increased amount of fines to be paid by businesses, and amendments to comply with World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty). Amendments were also made in the same year following adoption of Copyright Management Business Law. Amendments in 2002 related to World Intellectual Property Organization Performances and Phonograms Treaty related to establishment of moral rights of performers and to rights of broadcasting organizations and wire diffusion organizations to transmit information. In 2003, amendments were made relating to reproduction to make enlarged books for school education, extension of period for protecting cinematographic work (from fifty years after publication to seventy years after production) and rules for estimation of damages and obligation to clearly show the specific conditions of damages (effective on January 1, 2004.) In addition to the above, the Law Concerning Special Provisions on Registration of Program Works (Law No.65 of 1986) was established regarding procedures for registration of programs, and the The Copyright Management Business Law was established regarding centralized management of copyrights in digitization and networking (Law No. 131 of 2000). (Note 1) Progress of digitization/networking and amendment of the Copyright -7-

12 Law Recently, the progress of digitization/networking has brought about an advanced information society where various forms of information are digitized and such information is transmitted through computer networks. Because of this, the copyright system is being reformed to correspond to the multimedia society. The right of public transmission, which was established in 1997, is a right to transmit a work to the public, and covers a wide area including interactive communications such as CATV or the Internet. Meanwhile, regulation on circumvention of technological protection measures in the amendment of 1998 was aimed at dealing with copyright infringements such as using a work without authorization by circumventing reproduction control technology committed to a DVD or satellite broadcasting. Prohibiting the elimination or altering of rights management information provides that unauthorized elimination or alteration of information on the copyright owner or conditions of use, which is incorporated into the digital data, shall be deemed as an infringement of the copyright. (Note 2) Transition of the copyright system 1869 The Publishing Ordinance was established 1893 The name was changed from the Publishing Ordinance to the Hanken Law 1899 The old Copyright Law was established 1970 The current Copyright Law was established 1978 Amendments made for conclusion of the Phonogram Protection Convention 1984 Necessary amendments made to establish the right of lending etc. following the popularization of phonogram-rental businesses and phonogram-dubbing businesses 1985 Amendments made to protect computer programs 1986 Provisions on database protection were clarified and those on wire diffusions were improved 1988 The duration of the protection of neighboring rights was extended and provisions on penalties for possession of pirated editions for -8-

13 distribution purposes were improved 1989 Improvements made for conclusion of the Convention for Protection of Performers 1991 Legal amendments made concerning rights granted to non-japanese performers and producers of phonograms on the lending of commercial phonograms, extension of duration of the neighboring right protection, and protection of non-japanese original phonograms that existed before Japan acceded to the Phonogram Protection Convention 1992 Amendments were made to compensate for interests of copyright owners, in personal recordings made at home using digital recording equipment etc Amendments made for concluding the WTO Agreement 1996 Amendments made to retroactively expand the subject of protection under neighboring rights, reinforce civil remedies and penalties, and extend duration of the protection for photographic works 1997 Amendments made to improve provisions on public transmissions 1999 Amendments made to regulate the circumvention of technological protection measures of protection, protect rights management information, expand the right of cinematographic presentation, newly establish the right of assignation, and abolish Article 14 of the Supplementary Provisions 2000 Amendments for expanded restriction on the rights relating to the use of copyrighted works for people with visual and hearing disabilities, reduced burden of proof in copyright infringement actions, significantly increased amount of fines to be paid by businesses and amendments to comply with World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty). Amendments accompanying adoption of Copyright Management Business Law Amendments for information disclosure of independent administrative institutions. Amendments in connection with -9-

14 formulation of Provider s Liability Law Amendments for establishment of moral rights of performers, and regarding provisions on rights of broadcasting organizations and wire diffusion organizations to transmit information Amendments concerning reproductions such as enlargement of books for school education, extension of period of protection (from fifty years to seventy years after production) of cinematographic work, estimation of damages, and obligation to clearly show specific conditions of damage. (Effective from January 1, 2004.) 2004 Obtaining commercial phonograms produced strictly for distribution outside Japan with the intention of distributing these goods within Japan deemed as copyright infringement. Lending rights for publications such as books, magazines and periodicals. Amendments strengthening penal regulations concerning copyright infringement. (Effective from January 1, 2005.) 2006 Revision of the rights of performers and record producers concerning simultaneous retransmissions of broadcasts. Revision of the definition of public broadcast. Automatic public transmission of recorded books. Freedom of reproduction of reference literature for the purpose of patent application procedures and administrative procedures of pharmaceuticals. Recognized the requirement of destroying temporary reproductions due to maintenance or repairs after the maintenance or repairs are completed. Exportation of pirated goods deemed as copyright infringement. Amendments strengthening penal regulations concerning copyright infringement. (Most become effective July 1, 2007.) - 3. International Harmonization and Cooperation Concerning Copyright Systems Works are the cultural products of human beings, and it is ideal that everyone be able to enjoy profits yielded by them. For this purpose, it is necessary to establish a framework in which the works are appropriately protected and can be distributed -10-

15 easily. Accordingly, today, it is necessary to harmonize each country s legal systems concerning copyright, and achieve an international harmonization of copyright systems so that copyrights are appropriately protected in each of these countries. Since modern international exchanges in economic, social, and cultural fields have become very active, international harmonization is a common challenge facing all countries. There are various conventions and treaties concerning copyright. Those to which Japan has acceded are as follows: (1) The Berne Convention (The Berne Convention for the Protection of Literary and Artistic Works) The Berne Convention, concluded in Berne (Switzerland) by mainly European countries in 1886, is based on a non-formality system, where no specific formalities, such as registration, are needed for the establishment of copyright. The Berne Convention has been amended about once every 20 years. Japan is one of the few Asian countries that has acceded to the Convention since its first version. Japan has acceded to the following versions of the Berne Convention: First version of the Berne Convention (1886) Japan acceded in 1899 Provisions added in Paris (1896) Japan acceded in 1899 Version revised in Berlin (1908) Japan acceded in 1910 Provisions added in Berne (1914) Japan acceded in

16 Version revised in Rome (1929) Japan acceded in 1931 Version revised in Brussels (1948) Japan acceded in 1974 Version revised in Paris (1971) Japan acceded in 1975 (2) The Universal Copyright Convention As is generally known, the Universal Copyright Convention was established by UNESCO, a suborganization within the United Nations, in 1952, as a bridge between countries that adopt a copyright formal procedural system for the establishment of copyright and member countries of the Berne Convention. Japan acceded to this Convention in Therefore, Japanese works are protected within both member countries of the Berne Convention and those of the Universal Copyright Convention, provided that the copyright is indicated. (Note) (Note) Bridge between a formality system and a non-formality system The system which requires formalities such as entry or registration is referred to as the formality system, and that which does not require such formalities is referred to as the non-formality system. Japan adopts a non-formality system. In order for a work of a country that adopts the non-formality system to be protected in a country that adopts the formality system, the work must satisfy the requirements designated by the country under the formality system. However, the Universal Copyright Convention provides that a work can be treated as satisfying such requirements, by indicating a mark (copyright mark) on all reproductions of the work. In this way, the Convention aims to serve as a bridge between the countries under the formality system and those under the non-formality system, while maintaining their respective systems. (3) The Convention for Protection of Performers (International Convention for Protection of Performers, Producers of Phonograms and Broadcasting -12-

17 Organizations) This Convention, which aims at protecting neighboring rights of performers and others was completed in Rome. Japan acceded to it in (4) The Phonogram Protection Convention (the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms) This Convention, aims at preventing piracy of phonograms, was adopted in Geneva in Japan acceded to it in (5) The WTO Agreement (the Marrakech Agreement Establishing the World Trade Organization) The WTO Agreement was enacted as a result of the Uruguay Round negotiations of the GATT (General Agreement on Tariffs and Trade), which started in September The TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) is one Annex to the WTO Agreement. The WTO Agreement came into effect in 1995; in Japan, it came into effect on January 1, The TRIPS Agreement stipulates new standards for computer programs, databases, rights of lending etc. in the area of copyrights. With regard to the protection of computer programs, Japan had already stipulated standards in the Law Partially Amending the Copyright Law of June 1985 in response to the result of a WIPO-UNESCO joint expert meeting in (6) WIPO Copyright Treaty International raising of copyright protection standards had been called for to correspond to the recent progress of information technologies such as the Internet. To this end, the WIPO Copyright Treaty and the Treaty for the Protection of the Rights of Performers and Producers of Phonograms were -13-

18 adopted in December 1996 as new international frameworks for copyrighting etc. that correspond to the progress of digitization and networking. The Treaties covered (a) protection of computer programs; (b) protection of collections of data or databases; (c) right of distribution; (d) right of lending; (e) right of communication to the public; (f) extension of duration of the protection of photographic works; (g) prohibition of circumvention etc. of reproduction control measures; and (h) prohibition of the alteration of rights management information. WIPO deposited the instrument of ratification with Japan on June 6, 2000, and the treaty went into effect on March 6, (7) WIPO Performances and Phonograms Treaty In July 2002, Japan acceded to WIPO Performances and Phonograms Treaty ( World Intellectual Property Organization Performances and Phonograms Treaty ) for the international protection of performances and phonograms which had been adopted together with WIPO Copyright Treaty in As a result of the accession, 1) phonograms of which performer is a citizen of a Contracting State of WIPO Performances and Phonograms Treaty and whose first fixation (recording) of the sounds was made in a Contracting State of the Treaty; and 2) performances made in a Contracting Party of the Treaty and performances fixed (recorded) by such performers as mentioned above, are now subject to the protection under the Copyright Law. 4. Essence of Copyright Japanese Copyright Law has a system similar to that of common law countries. Under present provisions, the concept of copyright only refers to the property rights for a work, but not an author s moral rights. This is indicated in such ways -14-

19 that only property rights are stipulated in Subsection 3 Rights Comprised in Copyright under Chapter II, Section 3 of the current Copyright Law, but moral rights of authors are stipulated in a different subsection (Subsection 2), while authors are also stipulated in Article 17 to enjoy both copyright and moral rights. (Note) Relation between copyright and author s moral rights How each country perceives the essence of copyright, or how each country provides the relation between copyright and author s moral rights differs significantly between civil law countries (Germany, France, etc.) and common law countries (UK, US, etc.). In civil law countries, the concept of copyright includes moral rights of authors. On the contrary, common law countries maintain the property feature of copyright, and exclude author s moral rights from the concept of copyright. 5. Relationship Between a Copyright and Various Neighboring Rights (1) Relation between a copyright and ownership Ownership is a right to use, take the profits of, and dispose of a subject-matter (Article 206 of the Japanese Civil Code), and is similar to copyright in that it is a right to dominate a subject-matter directly and exclusively. However, they are fundamentally different in that the subject for ownership is tangible but the subject for copyright is intangible, therefore, ownership and copyright of subject-matter may not be the same. Meanwhile, ownership is a property right that realizes a complete, exclusive dominance over a tangible object, but exclusive dominance by copyright is not as complete as that by ownership. For example, unlike ownership, copyright has a fixed duration. (2) The Relationship between copyright and industrial property right The definition of industrial property rights (note) is quite broad under the -15-

20 Paris Convention for the Protection of Industrial Property. Nevertheless, in Japan, the term only indicates patent, utility model, design, and trademark rights (including service marks). Industrial property rights and copyrights are similar in that they both apply to intangible matter exclusively. However, while industrial property rights are for laws of nature such as inventions or devices, copyright aims at protecting spiritual and cultural products. Also, industrial property rights adopt a formality system that requires registration to establish rights, copyright adopt a non-formality system that requires no registration. (Note) Industrial Property Right On July 3, 2002, the Intellectual Property Strategy Council led by the Japanese Prime Minister adopted an Intellectual Property Strategy Outline which stated that the conventional terms chiteki-shoyuken (intellectual ownership right) and kougyo-shoyuken (industrial ownership right) would be referred to as chiteki-zaisanken (intellectual property right) and sangyo-zaisanken (industrial property right), respectively, to describe the nature of the right more appropriately. (3) Copyrights and intellectual property rights Intellectual property rights are a generically used to protect achievements (intellectual property) through intellectual endeavors by human beings such as in industrial property rights, copyrights and other rights. This is the same definition as that of Intellectual Property Right mentioned in Article 2 of the Convention Establishing WIPO (World Intellectual Property Organization). Under Basic Law on Intellectual Property implemented in 2002, chiteki-shoyuken (intellectual property right) is defined as patent right, utility model right, plant variety right, design right, copyright, trademark right and other legally -16-

21 established rights relating to intellectual property or rights relating to interests which are legally protected. (Note) (Note) Intellectual property right and intellectual property Today, the term intellectual property is widely used along with intellectual property rights. Intellectual property includes intellectual property rights and, also, legal interests which have not yet become rights such as know-how or technological secrets. In this respect, the Basic Law on Intellectual Property defines that intellectual property refers to inventions, devices, new varieties of plants, designs, works and other property that is produced through creative activities by human beings (including discovered or solved laws of nature or natural phenomena that are industrially applicable), trademarks, trade names and other marks that are used to indicate goods or services in business activities, and trade secrets and other technical or business information that is useful for business activities. -17-

22 Chapter 2 Outline of the Copyright Law 1. Purpose Article 1 of the Copyright Law states, The purpose of this Law is, by providing for the rights of authors and the rights neighboring thereon with respect to works as well as performances, phonograms, broadcasts and wire diffusions, to secure the protection of the rights of authors, etc., having regard to a just and fair exploitation of these cultural products, and thereby to contribute to the development of culture. This Article protects the rights of authors and creators and the fair exploitation of their works. It states the purpose of this Law and serves as a guideline for the interpretation of provisions from succeeding articles. 2. Subject of Copyright A distinction must be made between the author and the copyright owner. The author means a person who creates a work (Article 2(1)(ii)). Copyright Law grants moral rights and copyrights to the authors of works (Article 17). To be an author, just the fact of having created a work is required; there is no need for specific formalities, such as registration. In other words, a non-formality system is applied. The author must be the creator of the work, with the exception where the author is presumed to be the author of that work (Article 14). Also, the author does not have to be a single person, and in cases of authors of a joint work (Article 2(1)(xii)) and authors of a combined work, there will be more than one author for a work. In addition, the Law provides for authorship of a legal person and that of a work -18-

23 made by its employee in the course of his duties as exceptional authorship. The current Law has a single article that integrates provisions for authorship of a legal person and that of a work made by its employee in the course of his duties (Article 15) (Note). (Note) Authorship of a legal person The current Law provides that the authorship of a work created by an employee of an organization such as a company shall belong to that legal person under certain requirements (Article 15). This is referred to as authorship of a legal person and that of a work made by its employee in the course of his duties. The requirements are as follows: (a) the work was created on the initiative of the legal person etc.; (b) it was created by a person engaged in the operations of the legal person etc.; (c) it was created by an employee of the legal person in the course of his duties; (d) it was is made public under the name of the legal person.; and (e) it is not otherwise stipulated in the internal rules or work regulations of the legal person. 3. Object of Copyright Work means a production in which thoughts or sentiments are expressed in a creative way and which falls within the literary, scientific, artistic or musical domain (Article 2(1)(i)). Therefore, the following requirements must be met to qualify a work. No formalities, such as entry or registration, are required for establishment of copyright (non-formality system). (1) It must be a creative expression of thoughts or sentiments -19-

24 It cannot be a mere copy of someone else s work, but it must express original thoughts or sentiments of the author. Therefore, as long as the work is created originally, it shall be protected as an original work, even if it is similar to another person s work by coincidence (Note). (Note) Miscellaneous reports and news reports Mere reports of facts (miscellaneous reports) or news reports, such as a report of a traffic accident in a newspaper, cannot be considered as creative expressions, and thus shall not fall under works (Article 10(2)). However, not all newspaper articles are excluded from works. Report articles reflecting the thoughts or sentiments of the reporter are protected under the Copyright Law as works. (2) It must express thoughts and sentiments externally A mere thinking process or an idea is not considered a work. It must be expressed externally by telling it to people or writing it down on paper. (3) It must fall within a literary, scientific, artistic, or musical domain Mechanically manufactured products and technical or practical products do not fall under works. However, computer programs and databases have come to be protected as independent works due to technological progress. Article 10 of the Copyright Law enumerates examples of works as listed below. Literary works Musical works Choreographic works Artistic works Architectural works Figurative works novels, diaries, poems symphonies, jazz, improvisation dance, ballet paintings, engravings, sculptures buildings themselves maps, drawings and charts of a scientific -20-

25 nature Cinematographic works Photographic works Program works movies, video movies photographs, photogravures computer programs Derivative works (Note 1) Compilations (Note 2) Database works (Note 3) Joint works (Note 4) (Note 1) Derivative works: A derivative work means a work created by translating, arranging musically, transforming, dramatizing, cinematizing or otherwise adapting a pre-existing work (Article 2(1)(xi)). Derivative works comprise the following four kinds: (a) translated works; (b) arranged works (Article 12(1)); (c) transformed works; and (d) adapted works. To exploit these works, authorization must be obtained from the copyright owner of not only the derivative work, but also of the original work (Article 28). (Note 2) Compilations: Compilations are works (not falling within the term databases ) which constitute intellectual creations, through the selection or arrangement of materials (Article 12(1)). If the materials can be considered as works (e.g. encyclopedias), they are categorized as one type of derivative works, but if they cannot be considered as works (e.g. telephone directories by type of business), they are not recognized as compilations. The reason why this article is not described in Article 10(1), which indicates the examples of works, is that Article 10(1) categorizes works by the form of materials, and compilations, which are collections of such materials, do not correspond to such categories. (Note 3) Database works Databases means an aggregate of information such as articles, numericals, -21-

26 or diagrams, which is systematically constructed so that such information can be searched for with the aid of a computer (Article 2(1)(xter)). Databases which, due to the selection or systematic construction of information contained therein, constitute intellectual creations and shall be protected as independent works (Article 12(2)). (Note 4) Joint works, aggregate works, and combined works A joint work means a work created by two or more persons in which the contribution of each person cannot be separately exploited (Article 2(1)(xii)). One of such examples is the record of a discussion. As related concepts, there are aggregate works and combined works. An aggregate work refers to a work in which each part can be separately exploited. An example is a history book comprising a modern history part and a contemporary history part. A combined work is a work that was originally created as a unified piece, but in which each part can be separately exploited. An example is the relation between the text and illustrations. 4. Works not protected under Copyright Law Some works cannot be protected under Copyright Law due to their public nature, even if requirements for works are met (Article 13). (a) The Constitution, treaties, laws, orders, municipal ordinance, and other rules and regulations (b) Notifications, instructions, circular notices, and the like issued by organs of the State or local public entities (c) Judgments, decisions and orders of law courts, as well as rulings etc. by administrative organs (d) Translations or compilations of those materials from (a) through (c) above, that are made by the State or local public entities. However, other reports such as white papers are protected under the Copyright Law, though they are -22-

27 published by the government. 5. The rights of authors The rights of authors comprise copyrights protecting an author s property rights (property rights to a work) and an author s moral rights which protect the character and personality of the author. The copyrights (property rights to a work) comprise a number of subsidiary rights, as follows: (1) The right to exploitation of original works (Right to exploit works as they are.) (a) Right of reproduction (Article 21) Reproduction means the reproduction in a tangible form by means of printing, photography, photocopying, sound or visual recording, or otherwise (Article 2(1)(xv)). (b) Rights of acting and musical playing (Article 22) Acting means the performance of works by means other than musical playing (including singing) (Article 2(1)(xvii). (c) Right of presentation (Article 22bis) Presentation means the projection of a work on the screen or other material forms. (d) Rights of public transmission, etc. (Article 23) Public transmission means the transmission of radio communications or wire-telecommunication intended for direct reception by the public (however, transmission through wireless LAN on the same network is excluded) (Article 2(1)(viibis)). Among these, the public transmission of radio -23-

28 communications intended for simultaneous reception by the public of the transmission having the same contents is called broadcasting (Article 2(1)(viii)), and the public transmission of wire-telecommunication intended for simultaneous reception by the public of the transmission having the same contents is called wire diffusion (Article 2(1)(ixbis). Public transmission includes interactive transmission, meaning public transmission made automatically in response to public requests (Article 2(1)(ixquater)), and making transmittable, which means the putting in such a state that the interactive transmission can be made (Article 2(1)(ixquinquies)) (Note). (Note) Examples of public transmissions, etc. Some examples of broadcasting are TV, radio, and satellite broadcasting, while CATV is an example of wire diffusion. Interactive transmission corresponds to transmission interactive with a user, and making transmittable refers to a case in which, for example, data is inputted to a server connected to a network. (e) Right of recitation (Article 24) Recitation means the oral communication by means of reading or otherwise not falling within the term performance) (Article 2(1)(xviii)). (f) Right of exhibition (Article 25) Exhibition means an exclusive right to exhibit the original of an artistic work or an unpublished photographic work. (g) Right of distribution (Article 26) Distribution means the transfer of ownership and lending of copies of a work to the public with or without payment as defined in Article 2(1)(xx). (h) Right of transfer of ownership (Article 26bis) -24-

29 Transfer means to offer a work, excluding cinematographic works, to the public through the transfer of an original or copy of the work. However, the provisions of the right of transfer shall not apply in the case of transfer of the work to the public by the copyright owner or an authorized party, transfer to the public by arbitration etc., transfer to a specific and small group of people, or lawful transfer overseas (Article 26(2)(ii)). (i) Right of lending (Article 26ter) Lending means to offer a work excluding cinematographic works to the public by lending copies of the work. (2) Rights of translation, adaptation, etc. (Article 27) Rights of translation, adaptation, etc. do not mean the right to exploit a work as it is, but cover the creation of a new work (derivative work) based on the original work. The author has the exclusive rights to (a) translate, (b) arrange musically, or (c) transform, or (d) dramatize, (e) cinematize, or (f) otherwise adapt the work (Article 27). (3) Right of the original author in the exploitation of a derivative work (Article 28) The author of the original work of the derivative work shall have the same rights as those of the author of the derivative work. The above subsidiary rights can be summarized as follows: (1) Rights to (a) Right of reproduction (b) Rights of acting and musical playing -25-

30 exploit original works (c) Right of presentation (d) Rights of public transmission, etc. (e) Right of recitation (f) Right of exhibition (g) Right of distribution (h) Right of transfer of ownership (i) Right of lending (2) Rights of translation, adaptation, etc. (translate, arrange musically, transform, dramatize, cinematize, or otherwise adapt the work) (3) Right of the original author in the exploitation of a derivative work 6. Author s moral rights The author s moral rights protect the character and personality of the author in the work (Note). Moral rights belong exclusively to the author and may not be assigned or transferred (Article 59). (Note) The stance of the current law concerning moral rights of the author The author s moral rights were internationally approved after being stipulated in a conference to amend the Berne Convention in Rome (1928). Japan has also stipulated Right of determining indication of the author s name and Right of preserving the integrity of the work since the time of the old Copyright Law. The current Copyright Law additionally stipulates the right of making the work public, and ensures that thorough protection is extended to the author s moral rights. The content of an author s moral rights is as follows. First is the right to make the work public (Article 18). This is the author s right to determine whether to -26-

31 publish the work, and if the work is to be published, when and how it should be published. Next is the right to determine indication of the author s name (Article 19). It is the author s right to determine whether to indicate authorship and what kind of indication should be used. Lastly, there is the right to preserve the integrity of the work (Article 20). This is the author s right to preserve the completed work, enabling claims against those who distort, remove, or conduct any other modifications without authorization. (1) Right to make the work public The author s right to determine whether to publish the work, and if the work is to be published, when and how it should be published (2) Right to determine indication of the author s name The author s right of determining whether to indicate the name of the author to claim who the author is, and what kind of indication should be used (3) Right to preserve the integrity of the work The author s right to preserve the completed work, which enables claims against those who distort, remove, or conduct any other modifications without authorization The author s moral rights are protected not only to safeguard integrity, but also to maintain public interests by preserving the original works as the nation s cultural inheritance. Legislation handling an author s moral rights after death seems to be different in each country. It is the question of whether the author s moral rights expire with the death of the author, or whether rights are inherited by the author s heir. Under the -27-

32 Japanese Copyright Law, the author s moral rights expire with the death of the author and are not inherited. However, the bereaved family are vested with their own moral rights in view of the public interests implicated in the work, by virtue of the provisions of Articles 60 and 116. For this reason, it is often the case that the term of moral rights of authors and the term of copyright protection do not correspond with each other. Furthermore, moral rights cannot be transferred to another party because of the inalienability, because of their inalienability. 7. Cases where free exploitation of a work is authorized The Copyright Law authorizes certain cases where a work can be exploited freely. This limitation comes from that the public nature of a work, it being used by the general public. Indeed, indication of the source is sometimes requested to prevent an author s interests from being harmed by the illicit use of his works. Although the work can be used freely, the user cannot harm the author s moral rights. The indication of the source is not necessary in all cases where the free exploitation of a work is approved. Sometimes, an indication can be inappropriate, limiting cases where the indication of the source is demanded. Article 48 (1) of the Copyright Law covers cases where indication of the source is required. Also, in cases under Article 43, an indication is required based on Article 48(3). Though the specific content of the indication of the source is not stipulated, the title, number of the work, and the name of the author must at least be indicated. -28-

33 <Cases where free exploitation of the work is approved> (1) Reproduction for private use (Article 30)* (2) Reproduction in libraries, etc. (Article 31) (3) Quotations (Article 32) Indication of source required (4) Use for the purpose of education (Articles 33-36) Reproduction in school textbooks (Article 33) Reproduction in order to prepare a textbook in large print (Article 33(2)) Broadcasting in school education programs (Article 34) Reproduction in schools and other educational institutions (Article 35) Reproduction for use as examination questions (Article 36) (5) Reproduction for the visually impaired (Article 37) (6) Automatic public transmission for the visually impaired (Article 37(2)) (7) Performance, etc. not for profit-making (Article 38) (8) Reproduction, etc. of articles on current topics (Article 39) (9) Exploitation of political speeches, etc. (Article 40) (10) Reporting of current events (Article 41) Indication of source required Indication of source required Indication of source required Indication of source required Indication of source required Indication of source required Indication of source required -29-

34 (11) Reproduction for judicial proceedings, etc. (Article 42 & 42(2)) (12) Exploitation for the purposes of disclosure pursuant to the Information Disclosure Act (Article 42(2)) (13) Exploitation by means of translation, adaptation, etc. (Article 43) Indication of source required Indication of source required Indication of source required (14) Ephemeral recordings by broadcasting organizations, etc. (Article 44) (15) Exhibition of an artistic work by the owner of the original thereof (Article 45) (16) Exploitation of an artistic work located in open places (Article 46) (17) Reproduction required for an exhibition of artistic works, etc. (Article 47) Indication of the source is required Indication of source required (18) Reproduction, etc. by the owner of a copy of a program work (Article 47bis) (19) Temporary reproduction due to maintenance, repair, etc. (Article 47(3)) *The limit of private use Reproductions by using copying devices installed for public use and reproductions with ill-intent, enabled by a circumvention of technological protection measures, do not fall under the private use. 8. Terms of copyright protection If a copyright is regarded as a right which should be maintained forever, public -30-

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